Filed September 5, 2001
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 00-1428
LEE MOI CHONG,
Appellant
v.
DISTRICT DIRECTOR, IMMIGRATION & NATURALIZATION
SERVICE, ANDREA QUARANTILLO
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 99-cv-03466)
District Judge: William G. Bassler
Argued: December 1, 2000
Before: BECKER, Chief Judge, RENDELL, and
MAGILL,* Circuit Judges
(Opinion Filed: September 5, 2001)
Stanley H. Wallenstein, Esq.
(Argued)
41-43 Beekman Street
3rd Floor
New York, NY 10038
Counsel for Appellant
_________________________________________________________________
* Honorable Frank Magill, Senior United States Circuit Judge for the
Eighth Circuit Court of Appeals, sitting by designation.
.
John M. McAdams, Jr., Esq.
(Argued)
David W. Ogden,
Assistant Attorney General
Terri Jane Scadron,
Senior Litigation Counsel
U.S. Department of Justice
Civil Division
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Counsel for Appellee
OPINION OF THE COURT
MAGILL, Senior Circuit Judge.
Lee Moi Chong appeals the District Court's denial of her
habeas petition seeking relief from a final order of removal
by the Board of Immigration Appeals (the "Board"). Chong
argues that the Board violated her due process rights, the
Immigration and Nationality Act (the "INA"), and
Immigration and Naturalization Service (the "INS")
regulations in determining that she is ineligible for
withholding of removal. We affirm.
I.
Chong, a Malaysian citizen, became a permanent resident
of the United States in 1991. In May 1997, a federal district
court convicted Chong of conspiracy to distribute heroin
and possession of heroin with intent to distribute, in
violation of 21 U.S.C. SS 846 and 841(b). The district court
sentenced Chong to time served, which amounted to two
years imprisonment. The court departed downward from
the minimum seventy-month sentence due to Chong's
cooperation with the government.
Based on Chong's drug convictions, the INS commenced
removal proceedings. The INS claimed that it could remove
Chong because her convictions constituted aggravated
felonies and related to a controlled substance. See 8 U.S.C.
2
.
S 1227(a)(2)(A)(iii) (2000); id. atS 1227(a)(2)(B)(i). In August
1998, Chong conceded removeability and an immigration
judge (the "IJ") ordered Chong deported to Malaysia.
Chong subsequently filed a motion with the IJ requesting
a hearing to determine her eligibility for withholding of
removal. The INA provides that "the Attorney General may
not remove an alien to a country if the Attorney General
decides that the alien's life or freedom would be threatened
in that country because of the alien's race, religion,
nationality, membership in a particular social group, or
political opinion." 8 U.S.C. S 1231(b)(3)(A) (2000). Chong
claimed that the Malaysian government would prosecute
her for her American drug convictions because she is ethnic
Chinese. The government argued that Chong was ineligible
for withholding of removal because her drug convictions
constitute a "particularly serious crime." Id. at
S 1231(b)(3)(B)(ii). An exception to S 1231(b)(3)(A) applies if
the alien, having been convicted by a final judgment of
a particularly serious crime[,] is a danger to the
community of the United States. . . . [A]n alien who has
been convicted of an aggravated felony (or felonies) for
which the alien has been sentenced to an aggregate
term of imprisonment of at least five years shall be
considered to have committed a particularly serious
crime. The previous sentence shall not preclude the
Attorney General from determining that,
notwithstanding the length of the sentence imposed, an
alien has been convicted of a particularly serious
crime.
Id. at S 1231(b)(3)(B).
After granting Chong a stay of removal, the IJ denied
Chong an individualized hearing, reasoning that her drug
convictions constitute per se "particularly serious crimes."
The IJ certified his decision to the Board. Subsequently, the
Board issued two opinions that hold that determining
whether an alien convicted of an aggravated felony and
sentenced to less than five years imprisonment has been
convicted of a "particularly serious crime" requires an
individualized examination of the nature of the conviction,
the sentence imposed, and the circumstances and
3
.
underlying facts of the conviction. In re L-S-, Interim
Decision 3386, 1999 WL 219344 (BIA Apr. 16, 1999); In re
S-S-, Interim Decision 3374, 1999 WL 38822 (BIA Jan. 21,
1999). Interpreting the Board's opinions to require an
individualized hearing, the IJ sent a letter to the Board
requesting it to remand Chong's case for a hearing. Chong
also requested that the Board remand her case to the IJ so
the IJ could make an individualized examination of her
conviction.
On July 12, 1998, the Board modified, but affirmed, the
IJ's decision. The Board held that Chong was ineligible for
withholding of removal because she had committed a
"particularly serious crime." The Board noted that although
Chong's two-year sentence is below the five-year term that
the INA requires to be considered a per se "particularly
serious crime," the district court departed from the
minimum sentence due to Chong's assistance to the
government. The Board stated: "This is different from a
sentence reduction due to a minor role in the offense or
other mitigating factors." The Board also examined the
complaint against Chong and asserted that "over several
years, [Chong] handled money derived from selling drugs
and arranged telephonic connections for people involved in
the conspiracy to promote the distribution of large amounts
of heroin." Alternatively, the Board held that Chong failed
to show that a return to Malaysia would threaten her
freedom due to her Chinese ethnicity.
Chong then filed a habeas petition in the District Court
under 28 U.S.C. S 2241, arguing that the Board violated her
due process rights and erred in determining that she was
ineligible for withholding of removal. On September 3,
1999, while Chong's habeas petition was pending in the
District Court, the INS deported her to Malaysia. The
District Court denied Chong's petition on February 29,
2000. The District Court held that neither due process nor
the INA required the Board to provide Chong with an
individualized hearing to determine whether she committed
a "particularly serious crime." The District Court also held
that the Board did not violate Chong's due process rights
because the Board: (1) provided Chong with adequate
notice; (2) did not deprive Chong of an opportunity to be
4
.
heard; and (3) based its decision on a permissible
interpretation of the INA under Chevron, U.S.A., Inc. v.
Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).1
Chong appeals, claiming that the Board violated (1) her due
process rights, (2) the INA, and (3) INS regulations.
II.
A. Jurisdiction
We initially must examine a number of jurisdictional
issues to determine whether we can entertain Chong's
appeal. First, the Supreme Court recently resolved a circuit
split by holding that neither the Antiterrorism and Effective
Death Penalty Act of 1996 nor the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 repeal
district courts' jurisdiction to review aliens' habeas petitions
filed under 28 U.S.C. S 2241(c). INS v. St. Cyr, 121 S. Ct.
2271, 2287 (2001); accord Liang v. INS, 206 F.3d 308, 317
(3d Cir. 2000). Second, S 2241(c)'s admonition that "habeas
corpus shall not extend to a prisoner unless" the prisoner
is "in custody" does not deprive us of jurisdiction to review
Chong's petition. 28 U.S.C. S 2241(c) (2000). Chong filed
her habeas petition on July 22, 1999. On September 3,
1999, while Chong's petition was pending in the District
Court, the INS deported her to Malaysia. The District Court
denied Chong's petition on February 29, 2000. We hold
that Chong is "in custody" within the meaning of S 2241(c)
notwithstanding her removal, because we measure custody
at the time Chong filed her petition. See Carafas v.
LaVallee, 391 U.S. 234, 238 (1968); United States ex rel.
Wojtycha v. Hopkins, 517 F.2d 420, 423 n.6 (3d Cir. 1975)
("The `in-custody' jurisdictional requirement is determined
as of the date the petition is filed in the district court.").
_________________________________________________________________
1. The District Court denied Chong's petition on the additional ground
that "she waived a deportation proceeding as part of her plea bargain."
Apparently, the District Court learned of this purported waiver from the
government's pre-sentence report. The pre-sentence report is not part of
the record, and the government seems to discount reliance upon it as a
means of affirming the District Court. Since we find other grounds
sufficient to uphold the District Court's decision, we need not investigate
the alleged waiver.
5
.
Finally, we must determine whether an Article III,S 2
case or controversy continues to exist despite Chong's
deportation. Regardless of whether an Article III,S 2 case
existed during the District Court proceedings, Chong must
show the subsistence of a case or controversy in this Court.
See Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78
(1990). Although the parties did not raise the case or
controversy issue in their original briefs, we must resolve
the issue because it implicates our jurisdiction. See St. Paul
Fire & Marine Ins. Co. v. Barry, 438 U.S. 531, 537 (1978);
Rogin v. Bensalem Township, 616 F.2d 680, 684 (3d Cir.
1980) ("Inasmuch as mootness would divest us of
jurisdiction to consider this appeal, we are obligated to
address this issue as a threshold matter.") (footnote
omitted).
We acknowledge that we previously have suggested that
it is within our discretion to consider a mootness question
not raised by the parties. See, e.g., Jersey Cent. Power &
Light Co. v. Lacey, 772 F.2d 1103, 1107 n.8 (3d Cir. 1985)
("As mootness is a jurisdictional question, we may consider
it sua sponte.") (emphasis added). However, the Supreme
Court has held that courts must decide Article III standing
issues, even when not raised by the parties, before turning
to the merits. Steel Co. v. Citizens for a Better Env't, 523
U.S. 83, 90 (1998) (stating that " `a court is bound to ask
and answer [a jurisdictional question] for itself, even when
not otherwise suggested' ") (citation omitted); see also Steele
v. Blackman, 236 F.3d 130, 134 n.4 (3d Cir. 2001)
("Although neither party argues that Steele's appeal is
moot, we are required to raise issues of standing sua
sponte if such issues exist."). Therefore, we proceed to
examine whether Chong's deportation renders her appeal
moot.
Initially, we must address Chong's argument that we
should entertain her appeal because we previously
maintained jurisdiction over a deportee's habeas petition in
Marrero v. INS, 990 F.2d 772 (3d Cir. 1993). In Marrero,
this Court held that it would have jurisdiction to review a
deportation order after the alien has been deported if the
record revealed a colorable due process claim, despite the
since repealed 8 U.S.C. S 1105a(c). Id. at 777. However,
6
.
Marrero did not address whether an Article III case or
controversy continued to exist after the alien's deportation.
The Supreme Court has cautioned that "drive-by
jurisdictional rulings of this sort . . . have no precedential
effect." Steel, 523 U.S. at 91. Thus, we think our inquiry
must extend beyond Marrero.
Under Article III, S 2 of the United States Constitution,
the exercise of judicial power depends upon the existence of
a case or controversy. DeFunis v. Odegaard, 416 U.S. 312,
316 (1974). In this case, Chong must show that her petition
is not moot despite her deportation. Put another way,
Chong must show that the standing she apparently had
when she filed her habeas petition continues to exist now.
See United States Parole Comm'n v. Geraghty, 445 U.S. 388,
397 (1980) (explaining that "mootness [is] the `doctrine of
standing in a time frame. The requisite personal interest
that must exist at the commencement of the litigation
(standing) must continue throughout its existence
(mootness).' ") (quoting Henry Monaghan, Constitutional
Adjudication: The Who and When, 82 Yale L.J. 1363, 1384
(1973)). Thus, Chong must show that she has suffered, or
is threatened with, an actual injury traceable to the INS
that is likely to be redressed by a favorable decision. See
Lewis, 494 U.S. at 477.
Even when a litigant is unable to meet the requirements
of the general mootness inquiry, the litigant may invoke an
exception to the mootness doctrine to gain judicial review.
There are four exceptions to the mootness doctrine, so that
a court will not dismiss a case as moot if: (1) secondary or
"collateral" injuries survive after resolution of the primary
injury; (2) the issue is deemed a wrong capable of repetition
yet evading review; (3) the defendant voluntarily ceases an
allegedly illegal practice but is free to resume it at any time;
or (4) it is a properly certified class action suit. Artway v.
Attorney Gen. of N.J., 81 F.3d 1235, 1246 n.6 (3d Cir.
1996). In this case, Chong contends that her petition
presents a live case or controversy under the general
mootness inquiry. Alternatively, Chong argues that
sufficient collateral consequences flow from the Board's
order of removal so that even though the INS already has
deported her, we may entertain her appeal.
7
.
The Supreme Court has explained that "an incarcerated
convict's (or a parolee's) challenge to the validity of his
conviction always satisfies the case-or-controversy
requirement, because the incarceration (or the restriction
imposed by the terms of the parole) constitutes a concrete
injury, caused by the conviction and redressable by
invalidation of the conviction." Spencer v. Kemna, 523 U.S.
1, 7 (1998). However, after the convict's sentence expires,
"some concrete and continuing injury other than the now-
ended incarceration or parole--some `collateral
consequence' of the conviction--must exist if the suit is to
be maintained." Id.
In Spencer, the Supreme Court held that insufficient
collateral consequences resulted from the petitioner's parole
revocation to avoid mootness. Id. at 14-17. In so holding,
the Court criticized precedent that presumed the existence
of collateral consequences and that accepted "the most
generalized and hypothetical of consequences as sufficient
to avoid mootness." Id. at 10. In particular, the Court
criticized its decision in Sibron v. New York , 392 U.S. 40
(1968), where the Court held that the "mere `possibility' " of
adverse collateral consequences is sufficient to preclude a
finding of mootness. Id. at 55 (citation omitted).
Nevertheless, the Spencer Court did not overrule Sibron,
instead distinguishing it by noting that although a court
may presume collateral consequences in the context of a
criminal conviction, the same cannot be said of parole
revocation. 523 U.S. at 12.
This Court interpreted Spencer's collateral consequences
analysis in Steele v. Blackman, where the INS deported the
petitioner after he filed a habeas petition seeking reversal of
the Board's determination that his drug convictions
amounted to an aggravated felony. 236 F.3d at 132. In
holding that the petitioner "alleged facts sufficient to show
a continuing injury and serious collateral consequences,"
we stated:
Erroneous conviction of an aggravated felony will have
several continuing and serious legal consequences for
[the petitioner], including serving as a permanent bar
preventing his return to the United States to visit his
family. See 8 U.S.C. S 1182(a)(9)(A) (Supp. II 1996)
8
.
(imposing a permanent bar on admissibility for
aggravated felons). A determination that [the
petitioner's] conviction did not constitute an aggravated
felony would alleviate many of these collateral effects.
Id. at 134 n.4.
We hold that sufficient collateral consequences flow from
the Board's order of removal to make Chong's appeal a live
case or controversy under Article III, S 2. Spencer rejects
Chong's claim that the Board's order of removal creates
sufficient collateral consequences by rendering her
ineligible to return to the United States due to possible
prosecution for felonious entry since Chong is " `able--and
indeed required by law--to prevent such a possibility from
occurring.' " Spencer, 523 U.S. at 15 (quoting Lane v.
Williams, 455 U.S. 624, 633 n.13 (1982)). However, the INA
provides, in relevant part, that an alien who has been
ordered removed "and who seeks admission within 10 years
of the date of such alien's departure or removal . .. is
inadmissible." 8 U.S.C. S 1182(a)(9)(A)(ii) (2000). Thus, the
Board's order of removal creates sufficient collateral
consequences to render Chong's petition a live case or
controversy by preventing her from entering the United
States for ten years. See Tapia Garcia v. INS , 237 F.3d
1216, 1218 (10th Cir. 2001) (holding that the deportee's
"inability to reenter and reside legally in the United States
with his family is a collateral consequence of his
deportation because it is clearly imposed as a matter of
law"); Max-George v. Reno, 205 F.3d 194, 196 (5th Cir.
2000), vacated on other grounds, 121 S. Ct. 2585 (2001)
(holding that the alien's deportation did not render his
habeas petition moot because "he cannot be admitted into
the United States within ten years of the date of his
removal"). But see United States v. Mercurris , 192 F.3d 290,
294 (2d Cir. 1999) (holding moot the deportee's habeas
petition challenging the district court's finding that his
marijuana convictions rendered him an aggravated felon
since the deportee's controlled substance conviction
prohibited him from entering the United States in the
following ten years, regardless of his alleged status as an
aggravated felon); Diaz v. Duckworth, 143 F.3d 345, 346-48
(7th Cir. 1998) (holding that the petitioner's deportation
9
.
mooted his habeas petition seeking reinstatement of"good-
time" credit and stating, in dicta, that "[w]hatever is left of
Sibron is too little for a deportee to invoke, even if the
deportee is complaining about a conviction, and not a
parole revocation, like Spencer, or a prison disciplinary
sanction, like Diaz"); cf. Hose v. INS, 180 F.3d 992, 996
(9th Cir. 1999) (en banc) (holding that the deportation of
the alien rendered her habeas petition seeking a stay of
deportation moot).
We recognize that Steele does not necessarily compel our
holding because of the different factual scenarios
presented. In Steele, the petitioner challenged the Board's
determination that he committed an aggravated felony. 136
F.3d at 132. The INA bars aggravated felons from entering
the United States for ten years. 8 U.S.C. S 1182(a)(9)(A)(ii).
Thus, a determination that the Steele petitioner's conviction
did not constitute an aggravated felony could allow the
petitioner to reenter the United States.
By contrast, Chong does not contest the Board's finding
that she committed an aggravated felony. Therefore, the
Board's unchallenged finding that Chong committed an
aggravated felony would bar Chong from reentering the
United States. Moreover, if we reversed the Board's finding
that Chong committed a "particularly serious crime," it
seemingly would be too late for the Attorney General to
withhold removal, since Chong already has been deported.
Nevertheless, we suppose that, were we to reverse the
Board's decision, the Attorney General could exercise his
discretion and grant "withholding" of removal and allow
Chong to reenter the United States. Accordingly, we hold
that Chong's inability to reenter the United States for ten
years after her deportation is a sufficient collateral
consequence stemming from the Board's order of removal to
render Chong's petition justiciable under Article III, S 2.
B. The Merits
Turning to the merits of the appeal, Chong argues that
the Board violated (1) her due process rights, (2) the INA,
and (3) INS regulations. We address these arguments in
turn.
10
.
1. Did the Board's Actions Comply with Due Process?
Chong claims that the Board violated her due process
rights by not giving her notice that it would decide whether
she committed a "particularly serious crime" without
remanding to the IJ and by not providing her with an
opportunity to be heard on the "particularly serious crime"
issue. We review de novo whether the Board violated
Chong's due process rights. See Larita-Martinez v. INS, 220
F.3d 1092, 1095 (9th Cir. 2000).
Aliens facing removal are entitled to due process.
Chlomos v. United States Dep't of Justice, INS, 516 F.2d
310, 313 (3d Cir. 1975). The Supreme Court has observed:
We are dealing here with procedural requirements
prescribed for the protection of the alien. Though
deportation is not technically a criminal proceeding, it
visits a great hardship on the individual and deprives
him of the right to stay and live and work in this land
of freedom. That deportation is a penalty--at times a
most serious one--cannot be doubted. Meticulous care
must be exercised lest the procedure by which he is
deprived of that liberty not meet the essential
standards of fairness.
Bridges v. Wixon, 326 U.S. 135, 154 (1945)."The
fundamental requirement of due process is the opportunity
to be heard `at a meaningful time and in a meaningful
manner.' " Mathews v. Eldridge, 424 U.S. 319, 333 (1976)
(citation omitted). Specifically, due process requires that
Chong: (1) be entitled to factfinding based on a record
produced before the Board and disclosed to her; (2) be
allowed to make arguments on her own behalf; and (3) have
the right to an individualized determination of her interests.
See Abdulai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001).
Chong contends that the Board violated her due process
rights by affirming the IJ's decision without remanding to
the IJ for an individualized hearing. We disagree. An
individual's due process right to be heard does not ensure
a hearing in all contexts, as such a requirement"would
grind judicial and administrative gears to a screeching
halt." Elliott v. Kiesewetter, 98 F.3d 47, 60 (3d Cir. 1996).
11
.
Instead, administrative bodies can preserve an individual's
due process right to be heard in many different ways. Id.
In this case, Chong received a live hearing before the IJ,
at which point she was afforded the opportunity to argue
that her drug convictions did not rise to the level of
"particularly serious crimes," and to present evidence to the
IJ supporting her position. The IJ created a record of the
proceedings, which was then transmitted to the Board for
review. In deciding that Chong had committed a
"particularly serious crime," the Board looked at the
specific facts of Chong's case--engaging in the
"individualized determination" that Abdulai requires--rather
than blindly following a categorical rule, i.e., that all drug
convictions qualify as "particularly serious crimes." 239
F.3d at 549. Due process requires no more. See id. at 549-
50; see also Ladha v. INS, 215 F.3d 889, 903-04 (9th Cir.
2000) (holding that once an alien receives a full and fair
hearing in front of an IJ, due process is satisfied).
Holding otherwise would give Chong the proverbial
"second bite at the apple." Once an alien has had a chance
to offer evidence and raise arguments on the "particularly
serious crime" issue during a removal proceeding, we can
see no persuasive reason for requiring that she receive a
second hearing on the question. Nor do we think that due
process necessitates such a redundant procedural
measure.
Chong also argues that the Board violated her due
process rights by not giving her the opportunity to submit
evidence to the Board. In fact, the Board did not prevent
Chong from submitting evidence relevant to the
"particularly serious crime" analysis. However, since Chong
believed that the Board would remand her case to the IJ for
a hearing, Chong did not submit any evidence to the Board.
Perhaps the Board should have provided notice to Chong
that it would decide the "particularly serious crime" issue
without remanding to the IJ, thereby indicating to Chong
that she should submit any evidence she wished to be
considered. But the Board's failure to provide notice to
Chong does not constitute a due process violation. Chong
had the opportunity to present any evidence concerning the
"particularly serious crime" determination to the IJ, and the
12
.
Board had the administrative record before it when
deciding Chong's appeal. This procedure satisfies due
process. See Abdulai, 239 F.3d at 549-50; see also Ladha,
215 F.3d at 903-04 (holding that once an alien receives a
full and fair hearing in front of an IJ, due process is
satisfied).
2. Did the Board Err in Interpreting the INA?
Chong argues that the Board violated 8 U.S.C.
S 1231(b)(3)(B) by not granting her an individualized
hearing to determine whether she committed a "particularly
serious crime." We accord Chevron deference to the Board's
interpretation of the INA. INS v. Aguirre-Aguirre, 526 U.S.
415, 424 (1999). Our inquiry, therefore, is limited to
determining whether the INA is silent or ambiguous with
respect to what constitutes a "particularly serious crime,"
and, if so, whether the Board's answer is based on a
permissible construction of S 1231(b)(3)(B). See Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842-43 (1984).
The INA is silent concerning how the Board should
determine whether an alien has committed a "particularly
serious crime" when a court has convicted the alien of an
aggravated felony for which the court sentenced the alien to
less than five years imprisonment. The statute simply notes
that the Attorney General is not precluded "from
determining that, notwithstanding the length of sentence
imposed, an alien has been convicted of a particularly
serious crime." 8 U.S.C. S 1231(b)(3)(B). In other words,
where a court has sentenced an alien to less than five years
for an aggravated felony, the statute grants the Attorney
General discretion to determine whether that alien has
committed a "particularly serious crime."
The Board has explained that when determining whether
a crime is "particularly serious,"
consideration of the individual facts and circumstances
is appropriate . . . This inquiry does not involve an
examination of the respondents' family or community
ties, or the risk of persecution in the alien's native
country. To make this determination, we look to the
conviction records and sentencing information.
13
.
Further, we do not engage in a retrial of the alien's
criminal case or go behind the record of conviction to
redetermine the alien's innocence or guilt.
In re L-S-, Interim Decision 3386, 1999 WL 219344 (BIA
Apr. 16, 1999). As this language demonstrates, In re L-S-
simply requires that an individualized examination or
determination of the "particularly serious crime" issue be
conducted, not that an individualized hearing be held. We
conclude that the Board's interpretation of S 1231(b)(3)(B) is
reasonable because it guides and channels the Attorney
General's discretion to determine whether an alien like
Chong has committed a "particularly serious crime,"
thereby helping to ensure that the Attorney General does
not make this determination in an arbitrary or inconsistent
manner.
Moreover, we conclude that the Board's interpretation of
S 1231(b)(3)(B) as necessitating only an individualized
examination of the "particularly serious crime" issue, rather
than an individualized hearing, is a permissible one. As we
noted supra in Part II.B.1., when an alien already has been
provided the opportunity to mount arguments and present
evidence on the "particularly serious crime" question during
a live removal hearing, due process does not require a
second hearing on the issue. All that the Constitution
mandates is an "individualized determination," which the
Board's construction affords. Abdulai, 239 F.3d at 549.
Thus, we reject Chong's argument that the Board violated
S 1231(b)(3)(B).
To the extent that Chong contends that the Board
violated its precedent by not conducting an individualized
determination of her case, we disagree. In fact, the Board
did conduct an independent determination of the facts and
circumstances of Chong's case. The Board noted that
although Chong's two-year sentence was below the five-year
term that requires an aggravated felony to be considered a
per se "particularly serious crime," the district court
departed from the minimum sentence due to Chong's
assistance to the INS. The Board stated: "This is different
from a sentence reduction due to a minor role in the
offense or other mitigating factors." The Board examined
the complaint against Chong and asserted that "over
14
.
several years, [Chong] handled money derived from selling
drugs and arranged telephonic connections for people
involved in the conspiracy to promote the distribution of
large amounts of heroin." This examination of the record
and sentencing information is all that Board precedent
requires.
3. Did the Board Violate INS Regulations?
Finally, Chong claims that the Board violated S 3.7 of the
INS regulations. In this case, the IJ certified his decision to
the Board. When an IJ knows at the time he issues a
decision that he will certify the case to the Board, as is the
case here, the INS regulations require the IJ to provide a
Notice of Certification. 8 C.F.R. S 3.7 (2001). The
regulations further require that the Notice of Certification
"inform the parties that they have the right to make
representations before the Board, including the making of
a request for oral argument and the submission of a brief."
Id. In this case, the Notice of Certification did not inform
Chong that she could "make representations before the
Board." Id.
"[O]ur standard of review is even more deferential when
an agency is interpreting a regulation rather than a statute
that it administers." Abdulai, 239 F.3d at 552. An agency's
interpretation of its own regulation is "controlling . . .
unless it is plainly erroneous or inconsistent with the
regulation." Bowles v. Seminole Rock & Sand Co., 325 U.S.
410, 414 (1945). The government, although acknowledging
that the Notice of Certification did not provide Chong with
the notice that S 3.7 requires, points out that the INS
regulations state that the "Board in its discretion may
review any such case by certification without regard to the
provisions of S 3.7 if it determines that the parties have
already been given a fair opportunity to make
representations before the Board regarding the case,
including the opportunity [to] request oral argument and to
submit a brief." 8 C.F.R. S 3.1(c). The government notes
that Chong filed a memorandum with the IJ in which she
argued that her convictions did not preclude her from
qualifying for withholding of removal. This evidence was
part of the administrative record before the Board when it
decided Chong's appeal. Therefore, the government
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concludes, the Board could have determined, underS 3.1(c),
that Chong already had been given a fair opportunity to
make representations before the Board. We disagree.
The Board could not have determined that Chong had the
opportunity to make representations "before the Board"
because at the time the IJ certified his decision, Chong had
not submitted any documents to the Board. The INA
defines the "Board" as "the Board of Immigration Appeals,"
and has a separate definition for "immigration judge." 8
C.F.R. S 1.1(e) (2001); id. at S 1.1(l). Thus, we cannot
consider documents Chong submitted to the IJ to be
"representations before the Board." Id. at S 3.7. Accordingly,
the IJ violated S 3.7 by not informing Chong that she could
"make representations before the Board, including the
making of a request for oral argument and the submission
of a brief." Id.
However, we hold that to warrant reversal, the S 3.7
violation must have prejudiced Chong. "[A]n agency's failure
to afford an individual safeguard required under its own
regulations may result in the invalidation of the ultimate
administrative determination," even if the regulation is not
constitutionally mandated. United States v. Morgan, 193
F.3d 252, 266 (4th Cir. 1999); see also Service v. Dulles,
354 U.S. 363, 388 (1957) ("While it is of course true that
. . . , the Secretary was not obligated to impose upon
himself these more rigorous substantive and procedural
standards, . . . having done so he could not, so long as the
Regulations remained unchanged, proceed without regard
to them."). This principle is rooted in the doctrine originated
in United States ex rel. Accardi v. Shaughnessy , 347 U.S.
260 (1954), where the Supreme Court vacated a Board
deportation order because the procedures leading to the
order failed to comply with INS regulations. Id. at 267.
Although the Accardi doctrine originally contemplated that
an agency's failure to comply with its own rules
automatically would nullify its actions, the Supreme Court
since has "required that claimants demonstrate prejudice
resulting from the violation unless `[t]he rules were not
intended primarily to confer important procedural benefits
upon individuals in the face of otherwise unfettered
discretion' or unless `an agency required by rule to exercise
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independent discretion has failed to do so.' " Morgan, 193
F.3d at 267 (quoting American Farm Lines v. Black Ball
Freight Serv., 397 U.S. 532, 538-39 (1970)).
In Waldron v. INS, 17 F.3d 511 (2d Cir. 1994), the
Second Circuit rejected the habeas petitioner's request to
reverse the Board when the IJ did not provide the petitioner
with a Notice of Certification under S 3.7. The court stated
that
when a regulation is promulgated to protect a
fundamental right derived from the Constitution or a
federal statute, and the INS fails to adhere to it, the
challenged deportation proceeding is invalid and a
remand to the agency is required . . . . On the other
hand, where an INS regulation does not affect
fundamental rights derived from the Constitution or a
federal statute, we believe it is best to invalidate a
challenged proceeding only upon a showing of
prejudice to the rights sought to be protected by the
subject regulation.
17 F.3d at 518.2 The court then turned to decide whether
fundamental rights with constitutional or federal statutory
origins are implicated by S 3.7's admonition that "[i]f it is
known at the time the initial decision is made that the case
will be certified, the notice of such certification shall be
included in such decision." 8 C.F.R. S 3.7. The Waldron
Court held that S 3.7 does not implicate a fundamental
_________________________________________________________________
2. In reaching its conclusion that some violations of INS regulations
require reversal without necessitating a showing of prejudice, a majority
of the Waldron panel rejected the Ninth Circuit's approach of "requir[ing]
a demonstration of prejudice irrespective of whether the subject
regulation was designed to protect a fundamental right derived from the
Constitution or a federal statute." 17 F.3d at 518 (citing United States v.
Calderon-Medina, 591 F.2d 529 (9th Cir. 1979)). Judge Walker's
concurring opinion disagreed with the majority's analysis and instead
argued that when the Board violates an INS regulation, the petitioner
always must show that the violation caused prejudice. Waldron, 17 F.3d
at 519-21 (Walker, J., concurring). We need not express an opinion
regarding this dispute due to our holding that S 3.7 does not implicate
a fundamental constitutional or statutory right. Thus, even under the
"stricter" approach of the Waldron majority, the S 3.7 violation must have
prejudiced Chong to warrant reversal.
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constitutional or statutory right, as it primarily addresses
the procedure for notifying an alien that the case is being
certified to the Board. 17 F.3d at 518.
We agree with the Second Circuit that S 3.7 is"not
grounded in any underlying fundamental constitutional or
statutory right." Id. As the Second Circuit noted, S 3.7
simply "addresses the procedure for notifying an alien that
the case is being certified to the [Board.]" Id. Thus, the S 3.7
violation must have prejudiced Chong to warrant reversal.
Chong argues that the IJ's failure to provide her with
notice that she could make representations before the
Board prejudiced her because, had she been given the
opportunity to present evidence to the Board, she would
have submitted the Pre-Sentence Investigation Report,
which states that Chong was a "minor participant" in the
heroin scheme. Additionally, Chong claims that she would
have produced several witnesses who would have testified
to the basis by which the prosecuting authorities found
that she was a minor participant. But since Chong fails to
address the Board's alternate holding that she does not
have a valid claim for withholding of removal, we hold that
the S 3.7 violation did not prejudice Chong.
Before the IJ, Chong conceded that her drug convictions
constituted aggravated felonies. See 8 U.S.C.
S 1101(a)(43)(B) (2000) (defining "aggravated felony," in part,
as "illicit trafficking in a controlled substance. . . ,
including a drug trafficking crime"). Since the INA provides
that an alien who is convicted of an aggravated felony is
deportable, the IJ correctly found Chong subject to
removeability. See id. at S 1227(a)(2)(iii).
Chong sought to avoid deportation by requesting
withholding of removal. The INA prohibits the Attorney
General from removing an alien if he "decides that the
alien's life or freedom would be threatened in that country
because of the alien's race, religion, nationality,
membership in a particular social group, or political
opinion." Id. at S 1231(b)(3)(A). Chong claimed that the
Malaysian government would threaten her freedom by
prosecuting her for her American drug crimes because of
her Chinese ethnicity. The Board rejected Chong's claim,
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holding that she "does not have a valid claim for
withholding of removal because she merely fears a
subsequent prosecution in Malaysia due to her drug
trafficking offense in the United States. [Chong] has not
shown that any such prosecution would include elements
of persecution because she is ethnic Chinese." Chong does
not contest this holding on appeal.
Instead, Chong claims that the Board erred in holding
that she committed a "particularly serious crime." But by
focusing on the Board's determination that she committed
a "particularly serious crime," rather than on the Board's
holding that her freedom would not be threatened in
Malaysia due to her Chinese ethnicity, Chong puts the cart
before the horse. Chong must show that the Board erred in
determining that her freedom would not be threatened in
Malaysia due to her Chinese ethnicity before demonstrating
that the exception for aliens who commit "particularly
serious crimes" does not pertain to deny her withholding of
removal. Thus, even though the IJ violated S 3.7, Chong's
failure to contest the Board's finding that her freedom
would not be threatened in Malaysia due to her Chinese
ethnicity requires us to hold that this violation did not
prejudice her. See In re Public Serv. Co. of N.H., 879 F.2d
987, 989-90 (1st Cir. 1989) (per curiam) (affirming because
the appellant challenged only one of two alternate bases for
the bankruptcy court's decision, "for whatever we might
decide about [one basis for the bankruptcy court's decision]
could in no way affect the correctness of the bankruptcy
court's denial of relief "); MacKay v. Pfeil, 827 F.2d 540, 542
n.2 (9th Cir. 1987).
III.
We have jurisdiction to hear Chong's habeas petition
because the Board's order of removal creates collateral
consequences that render her appeal a live case or
controversy under Article III. The Board has not violated
Chong's due process rights or the INA. Although the IJ did
violate INS regulations, this violation did not prejudice
Chong. Accordingly, we AFFIRM the District Court's denial
of Chong's petition.
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A True Copy:
Teste:
Clerk of the UnitedStates Court of Appeals
for the Third Circuit
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